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decided: November 22, 1977.


Appeal from the Order of the State Civil Service Commission in case of In Re: Thelma B. Warwood, No. 1784.


Charles W. Johnston, Jr., with him Handler, Gerger and Weinstock, for petitioner.

Robert E. Kelly, with him Lynne M. Mountz, Assistant Attorney General, and Robert P. Kane, Attorney General, for respondent.

President Judge Bowman and Judges Mencer and Blatt, sitting as a panel of three. Opinion by Judge Mencer.

Author: Mencer

[ 32 Pa. Commw. Page 469]

On September 22, 1976, the State Civil Service Commission (Commission) issued an order dismissing the appeal of Thelma B. Warwood from a December 4, 1975 extension of her probationary status as an Income Maintenance Worker II and from a March 12, 1976 demotion to Income Maintenance Worker I. Warwood has appealed only the decision concerning the extension of her probationary status to this Court.

Warwood, an employee of the Lancaster County Board of Assistance (appointing authority), was promoted to the position of Income Maintenance Worker II, probationary status. During her probationary period, which was to last 6 months, Warwood's performance was continually monitored so that her ability to perform her new duties satisfactorily could be determined.*fn1 Initially, she had difficulty handling the work, and her supervisor was compelled to redistribute a large portion of her caseload to the other employees. Gradually, most of the work was returned to Warwood, although specific problems remained. Finally, a formal evaluation was made of Warwood's performance. The report of this evaluation, which was presented to Warwood on December 4, 1975, contained unsatisfactory ratings in the areas of quality of work and work habits. It also purported to extend her probationary status for an additional 3 months. The reasons for this personnel action included Warwood's ineffective planning and organization of work, her failure to organize field visiting and maintain accurate record keeping, and her unreceptive attitude

[ 32 Pa. Commw. Page 470]

    toward constructive criticism. Warwood refused to sign this report. Thereafter, she appealed the personnel action to the Commission.

Warwood's subsequent performance showed little sign of improvement, and near the end of her extended probationary period she received notice of her pending demotion. The notice specified as aspects of her unsatisfactory performance her inaccurate recording and reporting of information in case records and her failure to complete follow-up work on a timely basis. Warwood also appealed this personnel action, alleging discrimination for nonmerit reasons.

A hearing was subsequently held before the Commission on both of Warwood's appeals. During the hearing, it was revealed that Warwood was responsible for several gross overpayments involving thousands of taxpayer dollars. It was not revealed that any of these large sums were recovered. Among other errors attributed to her was the failure to maintain adequate records of her comparatively high expenses. The Commission failed to find any evidence to support Warwood's charges of discrimination. On the contrary, it found substantial and credible evidence to support the appointing authority's personnel actions.

On appeal to this Court, Warwood has chosen not to further contest her demotion. Thus, she does not suggest that her performance was satisfactory or that nonmerit factors were responsible for the demotion. See, e.g., Philadelphia County Board of Assistance v. Cahan, 24 Pa. Commonwealth Ct. 543, 358 A.2d 440 (1976); Section 706 of the Civil Service Act (Act), Act of August 5, 1941, P.L. 752, as amended, 71 P.S. § 741.706. Rather, she contends that the extension of her probationary period was contrary to law and that consequently she automatically attained regular status at the end of the original probationary period. Apparently,

[ 32 Pa. Commw. Page 471]

    she seeks back pay between that time and the time of her presently uncontested demotion.

We need not decide whether the Commission's regulation under which her probationary status was extended*fn2 is invalid because it has not been established

[ 32 Pa. Commw. Page 472]

    that Warwood ever attained regular status. Even if her continued probationary status was contrary to law, there is no provision in the law to convert it to a regular status. Cf. Shapiro v. State Civil Service Commission, 12 Pa. Commonwealth Ct. 121, 315 A.2d 324 (1974) (no provision in law to automatically convert provisional status to regular status). See also McCartney v. Johnston, 326 Pa. 442, 191 A. 121 (1937). Rather, Section 603(b) of the Act, 71 P.S. § 741.603(b), provides:

(b) Ten days prior to the expiration of an employe's probationary period the appointing authority shall notify the director in writing whether the services of the employe have been satisfactory. A copy of such notice shall be given to the employe. If the employe's work has been satisfactory he shall at the completion of his probationary period become a classified service employe under the provisions hereof and continue in that position unless separated therefrom as herein provided. (Emphasis added.)

Thus, unless it is established that the services of a probationary employee have been satisfactory, as that term is used in the Act, the employee does not achieve any status under the Act which he did not previously enjoy.*fn3 The instant record does not indicate that Warwood's performance was satisfactory within the meaning of the Act.

The limitation on the achievement of superior status without a corresponding demonstration of superior

[ 32 Pa. Commw. Page 473]

    performance is totally consistent with the purpose of the Act:

Greater efficiency and economy in the administration of the government of this Commonwealth is the primary purpose of this act. The establishment of conditions of service which will attract to the service of the Commonwealth qualified persons of character and ability and their appointment and promotion on the basis of merit and fitness are means to this end.

Section 2, 71 P.S. § 741.2.

We have repeatedly stated that an employee's relationship with the classified service turns upon a merit concept. Pennsylvania Department of Justice v. Grant, 22 Pa. Commonwealth Ct. 582, 350 A.2d 878 (1976); Rizzo v. State Civil Service Commission, 17 Pa. Commonwealth Ct. 474, 333 A.2d 212 (1975); Corder v. State Civil Service Commission, 2 Pa. Commonwealth Ct. 462, 279 A.2d 368 (1971). We do not believe the Legislature intended that an employee whose performance is not clearly and wholly satisfactory, as that term is used in the Act, be given the right to higher pay and greater responsibility by the mere lapse of time. Such a policy would contradict the express purpose of the Act and the clear implication of Section 603(b).

We therefore hold that, whether or not Warwood's probationary status was properly extended, she did not automatically attain the rights of regular status.


And Now, this 22nd day of November, 1977, the order of the State Civil Service Commission in the above-captioned matter, dated September 22, 1976, is hereby affirmed.



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